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Chemical Test Refusal: Police Must Warn In Clear and Unequivocal Language That Insistence On Waiting For Lawyer Constitutes A Refusal


 criminal appeals, DWI, DUI, refusal, right to counsel

People v. Smith

18 N.Y.3d 544

New York Court Of Appeals

Decided on: February 16, 2012

Court Of Appeals: There Is A Limited Right To Counsel Before Taking A Chemical Test.

Summary: Police pulled Defendant over and arrested him for driving while intoxicated. They asked the Defendant if he would submit to a chemical test and the Defendant responded that he wanted to speak to his lawyer before deciding. When Police asked Defendant a third and final time whether he was willing to submit to the chemical test, Defendant responded in the same manner as the previous occasions that he was waiting for a call from his lawyer. The Police interpreted Defendant’s response as a refusal to submit to the test and recorded that refusal on a form pursuant to Vehicle and Traffic Law §1194 (2) (b).

At a pretrial hearing, Defendant moved to preclude the People from introducing evidence at trial that he refused to take the chemical test. Defendant was ascertain that he never actually declined to be tested, but merely requested an opportunity to contact his lawyer first. Defendant argues that he was never advised that his time to seek consultation with his attorney had elapsed and would be interpreted as a refusal to take the test.

The trial court denied Defendant’s motion to preclude the evidence and the Appellate Division affirmed. The Court of Appeals granted Defendant leave to appeal and held that the Defendant was never warned in a clear and unequivocal language that his insistence on waiting for his attorney would be interpreted as a refusal to take the chemical test. The Court of Appeals reversed the Appellate Division’s order and ordered a new trial.

See Also: Knowing and Voluntary Plea: Judge’s Unfulfilled Promise Induced Defendant To Plead Guilty Rendering Guilty Plea Unknowing And Voluntary

Issue: Whether the trial court erred when it permitted the People to introduce evidence of a chemical test refusal when Defendant was merely waiting to hear back from his lawyer and Police did not properly inform Defendant that his insistence on waiting would constitute a refusal and whether there is a limited right to counsel associated with determining whether or not to consent to a chemical test.

Holding: The Court of Appeals that the trial court erred when it allowed the People to admit evidence that the Defendant refused to take a chemical test. Vehicle and Traffic Law § 1194 (2) of that statute grants a motorist a qualified right to decline to voluntarily take a chemical test with the understanding that such a decision will have a significant consequence; it will result in the immediate suspension and ultimate revocation of the motorist’s driver’s license for one year. However, those consequences flow from a refusal only if first warned in clear and unequivocal language, of the effect of such refusal.

Vehicle and Traffic Law § 1194 does not address whether a motorist has a right to consult with a lawyer prior to determining whether to consent to chemical testing. However, if the motorist is arrested for driving while intoxicated or a related offense, the Court of Appeals has recognized a limited right to counsel associated with the criminal proceeding. If a Defendant is arrested for driving while under the influence of alcohol asks to contact an attorney before responding to a request to take a chemical test, the police, may not, without justification, prevent access between the criminal accused and his lawyer, available in person or by immediate telephone communication, if such action does not interfere unduly with the matter at hand.

Facts: Police pulled Defendant over and smelled alcohol on his breath. He was arrested for driving while intoxicated. The Police asked if Defendant would submit to a chemical test and the Defendant responded that he wanted to speak to his lawyer before deciding and was transported back to the station. When Police asked Defendant a third and final time whether he was willing to submit to the chemical test, Defendant responded in the same manner as the previous occasions that he was waiting for a call from his lawyer. The Police interpreted Defendant’s response as a refusal to submit to the test and recorded that refusal on a form pursuant to Vehicle and Traffic Law §1194 (2) (b). At a pretrial hearing, Defendant moved to preclude the People from introducing evidence at trial that he refused to take the chemical test. Defendant argued that he never actually declined to be tested but merely requested an opportunity to contact his lawyer first. Defendant argues that he was never advised that his time to seek consultation with his attorney had elapsed and would be interpreted as a refusal to take the test.

The trial court denied Defendant’s motion to preclude the evidence and the Appellate Division affirmed. The Court of Appeals granted Defendant leave to appeal and held that the Defendant was never warned in a clear and unequivocal language that his insistence on waiting for his attorney would be interpreted as a refusal to take the chemical test. The Court of Appeals reversed the Appellate Division’s order and ordered a new trial.

Legal Analysis: The Court of Appeals held that Defendant’s proof that he refused to take a chemical test was not properly admitted against him at trial. Under Vehicle and Traffic Law § 1194 (2) (f), evidence that a Defendant declined to take a chemical test is admissible provided that Defendant was clearly and unequivocally informed that this would be one of the ramifications of refusal. The proof is established to permit the conclusion of consciousness guilt; that a Defendant who refuses to take the test because of his apprehension as to whether he would pass it. The admission of this type of evidence does not implicate a Defendant’s right against self-incrimination because there is no compulsion to refuse to take the test.

Refusal evidence is probative of a Defendant’s consciousness of guilt only if the Defendant actually declined to take the test. Whether a Defendant refused in a particular situation may be difficult to ascertain in cases where the accused did not communicate that intent in so many words. The Court of Appeals held, to be sure, a Defendant need not expressly decline a Police officer’s request in order to effectuate a refusal that is admissible at trial. A Defendant can signal an unwillingness to cooperate that is tantamount to a refusal in any number of ways, including through conduct. Whether a Defendant’s words or actions amounted to a refusal often constitutes a mixed question of law and fact that requires the sentencing court to view Defendant’s actions in light of all the surrounding circumstances and draw permissible inference from equivocal words or conduct

The Court of Appeals held that in this case, there is no dispute concerning the events that led up to the Police’s conclusion that Defendant had refused to take the test. The Officer’s granted the Defendant’s request to contact his attorney but they left him for a significant period of time to await the call back from his lawyer. They did not indicate at any point that BAC tests were to be administered promptly or that his time to make a decision was limited. When the Defendant was asked a third a final time whether or not he was willing to take a chemical test, he responded in the same manner as the previous occasion; that he was waiting to consult with is lawyer. The Defendant has no reason to know that his time for deliberation was over. A reasonable motorist in Defendant’s position would not have understood that, unlike the prior encounters, the further request to speak to an attorney would be interrupted by the troopers as a binding refusal to submit to a chemical test. The Defendant was not properly warned that his conduct would constitute a refusal. The evidence of that refusal therefore was received in error at trial.

The People suggest that a reversal of this case will require Police officers to advise Defendants concerning the contours of their limited right to counsel. The Court of Appeals held that they have already rejected the notion that the Police must notify a Defendant concerning the limited right recognized in Gursey, Shaw, 72 NY2d 1032. All that is required for a refusal to be admissible at trial is a record basis to show that, through words or actions, Defendant declined to take a chemical test despite having been clearly warned of the consequences of refusal.

The Court of Appeals held that in this case, such evidence would have been present if, during the third request, the Police had alerted Defendant that his time for deliberation had elapsed and if he did not consent to the chemical test at that time his response would be deemed a refusal. The Court of Appeals held where, after a Defendant continued to express his desire to consult with counsel before taking a chemical test, the Police in this case properly advised Defendant that his insistence on waiting for his attorney would be interrupted as a refusal, People v. Orama, 78 NY2d 270, 280-281 1991. The Court of Appeals reversed the Appellate Division’s order and ordered a new trial.


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